Tuesday, July 19, 2011

legal


In the event of land owner failed to pay quit rent; 
The state authority may imposed implied conditions 
The state authority may imposed express conditions 
The land may be forfeited to the state and the state may imposed express conditions 
The land may be surrendered to the state

‘’Land’’ includes : Based on the following definition of land found in the National Land Code 1965; house, swimming pool and air conditioners are the examples of; 

The surface of the earth and all substances forming that surface 
The earth below the surface and all substances therein 
All vegetation and other natural products, whether or not requiring the periodical application of labour to their production, and whether on or below the surface 
All things attached to the earth or permanently fastened to anything attached to the earth, whether on or below the surface

• Alienated to an individual for an unlimited period 

• Market value is considered high 

The two descriptions above refer to; 

Leasehold land 
Freehold land 
Tenancy 
Temporary occupation licence
ANS:B
May be responsible for developing and maintaining improvements. • May be required to engage in property planning. The above situations are referred to; 
Duty of care for leasehold land 
Duty of care for freehold land 
Security of tenure for leasehold land 
Security of tenure for freehold land
‘’The buyer becomes ill after eating a chocolate which has been exposed with other chemical, thus he can sue the seller for breach of the contract’’. The action of buyer shows that : 
There is a ‘’privity of contract’’ exists between them 
There is a ‘’collateral contract’’ exists between them 
There is a ‘’conditional contract’’ exists between them 
There is a ‘’contingent contract’’ exists between them
Under Consumer Protection Act 1999, any claim lodged with the Tribunal may include loss or damage of a consequential nature. The amount of claim shall 
exceed RM25,000 
not exceed RM25,000 
be more than RM25,000 but not exceed RM100,000 
be less than RM250,000


All information given are TRUE pertaining to land matter, EXCEPT; 
Penang and Malacca adopt NLC (Penang & Malacca Titles) Act 1963 due to historical and political developments 
Sabah and Sarawak adopt Sabah and Land Ordinance and Sarawak Land Code due to historical and political developments 
Land is a state matter which is administered at the State level by the Director of Lands and Mines, assisted by the Collector of Land Revenue and the Land Administrator 
Land is a state matter which is administered at the State level by the Director of Local Authority, assisted by the Collector of Land Revenue and the Registrar of Titles
ANS: D or C
Which is the suitable term to relate with the application for proposed development comprising 40 units terrace houses with each separate titles; 
amalgamation 
conversion 
subdivision of land 
partition of land
ANS:C
Which of the following is TRUE about Leasehold 
Few limitations on transfer. 
Unlimited right to subdivide and aggregate subject to town planning controls. 
High level of duty of care defined in land legislation. 
Duty of care following common law and as required by some Environment Protection Acts or its equivalent.
ANS:A
Which of the following is TRUE about trespass to goods 
Assault – an intentional and direct act of the defendant which causes the plaintiff fear for his safety. A civil wrong as well as a criminal act. 
Battery- an intentional and direct application (physically touch) of the defendant to plaintiff (by force) and without his consent. 
False imprisonment – the plaintiff is unlawfully detained (against his will) by the defendant. 
A wrongful and direct interference with goods that are in the possession of another -------ANS:D



Find the correct statement pertaining to several terms found in the National Land Code 1965; 
Qualified titles are the forms of title under which lands are alienated after they have been surveyed whilst Final titles are yet to be surveyed. 
Final titles are the forms of title under which lands are alienated before they have been surveyed whilst Qualified titles are yet to be surveyed. 
Final titles are the final forms of title under which lands are alienated after they have been surveyed whilst Qualified titles are yet to be surveyed. 
Qualified titles are the final forms of title under which lands are not alienated after they have been surveyed whilst Final titles are yet to be surveyed.
ANS:C
F.O.B contract only deals with one of the following characteristics: 
The buyer meets all the handling and loading charges 
The goods are at the seller’s risk 
The goods are at the buyer’s risk 
The property passes to the seller
Which one is FALSE about Breach of Duty? 
The first step is normally for the court to assess 
The second step is normally to assess 
The standard of care required of the defendant would affect whether he has breached that standard 
Standard of care – if it is in a professional capacity, the standard of care required is that of as expected of a reasonable professional in the defendant’s discipline in the situation
Malay Reserve Land is the best example of ; 
Condition and restriction on title 
Qualified title 
Final title 
Registry title
Which of the following statements is WRONG about private caveat? 
Any person claiming title to the land or registrable interest may apply to have a private caveat lodged against the land 
Operates with prohibitive effect against subsequent dealings (including exempt tenancy and lien) which are adverse to the interests or rights claimed by a caveator 
Effective for 6 years only, subject to renewal 
A means of protecting the interests of beneficiaries under a trust 

..choose 1
ANS:A
Title X
Title Y
Title Z

Title evidenced by a Grant (geran) (for freehold land), or state lease (pajakan negeri)(for leasehold land
Title evidenced by a Mukim Lease, registered in the local Land Office (Pejabat Tanah Daerah/PTD)
Title issued to any of the individual parcels within a building which has been subdivided , including a strata title as defined in the Strata Title Act 1985


Select the TRUE combination from the above table 

Title X - Final title 
Title Y - Subsidiary Title 
Title Z -Land Office Title 
Title X -Registry title
Hiring, loan and delivery of goods for repair can be classified as: 
resale 
bailment 
lien 
insolvency
ANS:B
Which of the following is TRUE about Leasehold 
Few limitations on transfer. 
Unlimited right to subdivide and aggregate subject to town planning controls. 
High level of duty of care defined in land legislation. 
Duty of care following common law and as required by some Environment Protection Acts or its equivalent.
What is the right of chargee? 
To discharge the charge after full payment of the loan, interest and all other monies secured by the charge 
Can create second and subsequent charges over the same land 
Can take possession of the land under charge when the chargor is in breach of agreements 
Can keep buildings in proper repair
Refers as conveyance by which the proprietor of land grants to another person an interest in the land less than a freehold and less than that to which the lessor is himself entitled.


The above statement is referred to;

Freehold 
Leasehold 
Lease 
Transfer





If the plaintiff is found to have contributed to (or be partly responsible for) his own injury, the damages recoverable by the plaintiff are to be reduced to such extent as the court thinks fair and equitable; ie the plaintiff may not be able to recover anything"

Under Law of Tort, the statement above is very close to 

Quantum of Loss 
Contributory negligence 
Professional negligence 
Causation
What is the right of chargee? 
To discharge the charge after full payment of the loan, interest and all other monies secured by the charge 
Can create second and subsequent charges over the same land 
Can take possession of the land under charge when the chargor is in breach of agreements 
Can keep buildings in proper repair
All information given are TRUE pertaining to land matter, EXCEPT; 
Penang and Malacca adopt NLC (Penang & Malacca Titles) Act 1963 due to historical and political developments 
Sabah and Sarawak adopt Sabah and Land Ordinance and Sarawak Land Code due to historical and political developments 
Land is a state matter which is administered at the State level by the Director of Lands and Mines, assisted by the Collector of Land Revenue and the Land Administrator 
Land is a state matter which is administered at the State level by the Director of Local Authority, assisted by the Collector of Land Revenue and the Registrar of Titles
ANS:C
’The buyer becomes ill after eating a chocolate which has been exposed with other chemical, thus he can sue the seller for breach of the contract’’. The action of buyer shows that : 
There is a ‘’privity of contract’’ exists between them 
There is a ‘’collateral contract’’ exists between them 
There is a ‘’conditional contract’’ exists between them 
There is a ‘’contingent contract’’ exists between them-----------------------ANS: D or A

Which of the following is TRUE about trespass to goods 
Assault – an intentional and direct act of the defendant which causes the plaintiff fear for his safety. A civil wrong as well as a criminal act. 
Battery- an intentional and direct application (physically touch) of the defendant to plaintiff (by force) and without his consent. 
False imprisonment – the plaintiff is unlawfully detained (against his will) by the defendant. 
A wrongful and direct interference with goods that are in the possession of another
Find the correct statement pertaining to several terms found in the National Land Code 1965; 

Qualified titles are the forms of title under which lands are alienated after they have been surveyed whilst Final titles are yet to be surveyed. 

Final titles are the forms of title under which lands are alienated before they have been surveyed whilst Qualified titles are yet to be surveyed. 

Final titles are the final forms of title under which lands are alienated after they have been surveyed whilst Qualified titles are yet to be surveyed. 

Qualified titles are the final forms of title under which lands are not alienated after they have been surveyed whilst Final titles are yet to be surveyed. 


choose 1
“Take place when a landowner applies to the state authority to ‘alter’ his present category of land use” is referred to; 
Amalgamation 
Subdivision 
Conversion 
Partition 
ANS:A

According to the section 5 of the N.L.C, one of the criteria of land may include all things attached to the earth, or permanently fastened to anything attached to the earth , whether on or below the surface, thus it means that an item may be: 
Fixture or chattel 
Frixture or chattel 
Fixture or chattle 
Ficture or chattel
ANS:A
The action of using land for mining activity without permission can be accurately regarded as : 
Temporary occupation license 
Trespasser 
Squatterer 
Restriction interest
ANS: TEMPORARY OCCUPATION LICENSE



Which of the following statements is WRONG about private caveat? 
Any person claiming title to the land or registrable interest may apply to have a private caveat lodged against the land 
Operates with prohibitive effect against subsequent dealings (including exempt tenancy and lien) which are adverse to the interests or rights claimed by a caveator 
Effective for 6 years only, subject to renewal 
A means of protecting the interests of beneficiaries under a trust
ANS:C,A,and B
Malay Reserve Land is the best example of ; 
Condition and restriction on title 
Qualified title 
Final title 
Registry title
ANS: A OR D
What is tenancy? 
Land which has been alienated to an individual for a term of years 
A letting of land for a term not exceeding 3 years, subject to renewal 
A permission of a temporary nature; granted by the State Authority for some restricted and permitted purpose 
Adverse possession of land (without any rights in land)
ANS: B AND C
Defamation is the defendant says or writes something which lowers the plaintiff’s reputation in the eyes of right-thinking members of the society generally. There are two forms of defamation. What are they? 
Libel and Slander 
Libel and Splinter 
Bible and Splinter 
Label and Slumber
ANS:A
‘’The buyer becomes ill after eating a chocolate which has been exposed with other chemical, thus he can sue the seller for breach of the contract’’. The action of buyer shows that : 
There is a ‘’privity of contract’’ exists between them 
There is a ‘’collateral contract’’ exists between them 
There is a ‘’conditional contract’’ exists between them
ANS:A 

Breach by the buyer may be considered as follow EXCEPT: 
Failure of buyer to take delivery 
Failure of buyer to accept goods 
Failure of buyer to pay for goods 
Failure of buyer to return the goods 

choose correct
ANS:A AND D

Take place when a landowner applies to the state authority to ‘alter’ his present category of land use” is referred to; 
Amalgamation 
Subdivision 
Conversion 
Partition 
ANS:C

more than one ans
What is the duties of chargor ?

-To pay loan and interest 
-Entitled to discharge the charge if all sums secured under the charge have been repaid 
-To keep the issue document of title or the duplicate lease 
-To discharge the charge after full payment of the loan, interest and all other monies secured by the charge
ANS:1 and 2

Refers as conveyance by which the proprietor of land grants to another person an interest in the land less than a freehold and less than that to which the lessor is himself entitled.


The above statement is referred to;

Freehold 
Leasehold 
Lease 
Transfer
ANS:C

Defamation

  • The defendant says or writes something which lowers the plaintif's reputation in the eyes of right-thinking members of the society generallly . There are two forms of defamation : 
(i) Libel - Defamation in a permanent form such as writing , printing and painting . 
(ii) Slander - defamation in the form of oral statement . 

Trespass to Goods

  • Direct physical interference with another's possession of goods without lawful justification . There are two forms of trespass to goods . 
(i) Detinue-wrongful retention of goods , e.g. Jane borrowed Mary's dress to go to a party but later she refused to return it to Mary . 

(ii) Conversion - dealing with another person's goods in a manner which is inconsistent with the rights of the true owner . E.g. Jane now sells Mary's dress to lucy

Trespass to Land

  • Unauthorised entry into ( or use of ) someone's land ( or premises ) , including under or over the land .

Breach of duty

  • The second step is to assess whether the duty of care was breached . 
  • Standard of care - in a professional or non-professional capacity : 
-if it is in a professional capacity , the standard of care required is that of as expected of a reasonable professional in the defendant's discipline in the situation . 
-If it is in a non-professional capacity , the standard of care required is that of as expected of an ordinary reasonable man in the situation . 
  • The standard of care required of the defendant would affect whether he has breached that standard 
  • Case : A doctor did not enquire into or test for allergies toward the drug penicillin ( antibiotics ) before administering the drug to his patient . The patient had a fatal reaction to the drug . The doctor was found to be professionally negligent in the discharge of his duties ( chin keow v. Government of Malaysia and Anor (1967 ) 2 MLJ 45 )
  • Question : Can a defendant refute negligence claim based on 'inevitable accident ? 
Answer : 'Inevitable accident ' is something which the defendant could not possibly prevent by the exercise of reasonable care , caution and skill .

Duty of care

  • The first step is normally for the court to assess whether the defendant owed a duty of care to the plaintiff , and whether the defendant could reasonably foresee that his acts ( or omissions ) would have an effect on the plaintiff . 
  • The test : 'neighbour principle ' as stated by Lord Atkin in Donoghue v. Stevenson , ( i.e. foresight of the reasonable man ) . It was held that the manufacturer of the ginger beer was found to be engligent towards the consumer of its product because it could foresee that anything inserted in the bottle with the drink would be found by the consumer .

Private caveat

  • An person claiming title to the land or registrable interest may apply to have a private caveat lodged against the land . 
  • The private caveat operates with prohibitive effect against subsequent dealings ( including exempt tenancy and lien ) which are adverse to the interest or rights claimed by a caveator . 
  • Effective for 6 years only , subject to renewal .

Caveat - Restraints on Dealing (NLC Provides 2 types of restraint on dealings in land ) Caveat

Caveat ( latin : beware ) is a notice entered in a register to warm people that they must not do something without first informing the person who makes the caveat .

Lien

  • Lien is a lender's ( creditor's ) right to hold property of the borrower ( debtor ) until the debt is paid . 
  • A statutory lien may be created only by a propretor or lessee of land depositing the issue document of title or the duplicate lease with the lender as security for a loan . The lender must then apply for the entry of a lien-holder's caveat , and then he becomes entitled to a lien over the land or lease only upon the entry of such caveat . A lien is not registered in the issue document of title , but it is endorsed int he register document of title at Registry or Land Office by entry of a lien-holder's caveat . 
  • Lien as a method of taking security is usually used when the loan is short term , or as a 'collateral' security . 
  • A lien is terminated by the withdrawal of caveat , and the return of the issue document of title upon payment of the debt and interest . 
  • NLC provides that the remedy given to the lien-holder is to apply to the court for an order for the sale of the land or lease ( even if the debt itself is barred by limitation law ) . 

Tenancy

  • A letting of land for a term not exceeding three years .
  • A tenancy is not an interest capable of registration ( threfore it is called 'tenancy exempt from registration ) 
  • The 3 essential characteristics 
(i) The tenant is given the right to exclusive possesson of the demised premises .
(ii) The parties must have intended to create a tenancy and not a license .
(iii) A tenancy must be granted for a definite period ( or a period capable of being ascertained ) .

Easement

  • An easement is a right granted by a proprietor of the servient land to the proprietor of the dominant land for the beneficial enjoyment of the latter's land . 
  • An easement can only arise by way of express grant and will give rise to a legal interest in the land . 
  • Generally there are 2 categories of easement . 
(i) Negative easement - requires the proprietor of the servient land to abstain from doing something which would interfere with the enjoyment of the dominant land , e.g. not to build on a specified part of his land to preserve the right of access to the dominant land . 

(ii) 'Positive easement - allows the proprietor of the dominant land to do something in , over or upon the servient land , e.g. having a right to lay soemthing in , over or upon the servient land , e.g. having a right to lay pipes over the servient land so as to convey water or gas .

Duties of Chargee

  • To discharge the charge after full payment of the loan , interest and all other monies secured by the charge .

Rights of Chargee

  • He has the right to force a sale on the land under charge to recover the monies due to him ( only by court order ) , or in the event of a breach agreement by the charger . 
  • He may take possession of the land under charge when the chargor is in breach of agreements . 
  • He may transfer the charge to a new chargee
  • He has the right to keep the issue document of title or the duplicate lease . 
  • He has the right to tack .i.e. further advances by the chargee to the chargor may be tacked on to and secured by a charge registered by the chargor in favour of the chargee .

Duties of Chargor

  • To pay loan and interest 
  • To pay rents , rates , taxes etc
  • To observe all conditions of land use 
  • To observe provisions of lease ( if leasehold ) and pay rents 
  • To keep buildings in proper repair . 
  • To insure buildings . 
  • To give chargee the right of entry for inspection and to remedy any breach .

Right of chargor

  • he may sell or transfer the land 
  • He may grant a lease , sublease or exempt tenancy over the land
  • He may create second and subsequent charges over the same land . 
  • he is entitled to discharge the charge if all sums secured under the charge have been repaid . 

Lease

  • A letting of land for a term exceeding 3 years ( >1 year for Sabah and Sarawak -a 'sublease') and not exceeding 99 years . 
  • An interest capable of registration . 
  • A lease is an interest in land granted by the lessor ( whether he is the owner of the land or not , to a lessee for a certain period ( Lessor > lessee ) 
  • A lease can be transmitted and is binding on the lessor's successors.

Surrender and Re-alienation

  • This is a method employed by some State goverments to expedite the 'multiple' processes of conversion , amalgamation and subdivision . 
  • This is achieved by the owner first surrendering the lots to the State , which immediately re-alienate in the land according to the approved layout . 
  • The time and effort normally associated with these processes are greatly reduced . 
  • An example of a development which benefits from 'surrender and re-alienation ' is a sizeable housing project comprising terrace houses to be developed on 'agriculture' land which is made up of several contiguous lots .

Amalgamation of Lands

  • Amalgamation means when two or more contiguous lots of alienated land are 'combined' into one and to be held under a sigle title . 
  • An example of development which requires amalgamation of two or more contiguos lots is where a proposed building or complex straddless these contiguous lots .

Partition of Land

  • Any alienated land which is held by two or more persons as co-proprietors may be partitioned so as to vest in each of them , under a separate title , a portion of the land of an area proportionate to his undivided share in the whole  . 
  • Normally no surrender of land is required .

Subdivision of Land

  • When a parcel of an alienated land is said to be subdivided , the parcel is 'cut' into two or more lots - each lot is issued with an individual title . 
  • This will normally involve surrender of a portion of the land for public use , e.g. public roads . ( Each parcel of land shall be accessible from a public road ) 
  • Usually approval of the planning authority will be required prior to the approval of subdivision . (Example : application for the subdivision of a single lot of 5 acres for a proposed development comprising 40 units terrace houses , each with its separate title ) .

Conversion

  • Application for conversion must be made when the proposed development on the land represents a change of use from the existing land use category . 
  • Example : Proposed residential development on ' agriculture ' land ; proposed commercial development on 'industrial' land .

Quit Rent

  • land may only be alienated by the State in consideration of the payment of an annual rent - which is referred to as 'quit rent ' ( cukai tanah ) . 
  • Quit rent is subject to periodic revision by the State . 
  • If the land owner fails to pay quit rents in arrears , the land may be forfeited to the State .

Express condition

(i) Section 121 - The State Authority may also impose express conditions on 'agriculture' land relating to the type of crops to be cultivated or prohibited ; the dates of harvesting ; and the maximum area to be occupied by buildings .

(ii) Section 122 - Express conditions on 'building' and 'industry' land may include the plinth ratio ; the design and material of construction ; the date of commencement and completion of building ; and the usage of the building .

Condition of Land Use

Section 52 of NLC states that there shall be three categoris of land use , to be known respectively as ' Agriculture ', Building' and 'Industry' . The conditions in land use are as follows :

Implied conditions

(i) Section 115 - Where any alienated land is subject to the category 'Agriculture .' some of the implied conditions are :
  • No building shall be erected within 2 years of alienation for one or more of the following purposes : residential , administrative or commercial , passenger transport , exhibition , retailing , services , educational , medical , sanitary , welfare , entertainment , recreation , etc .
  • No part of the land shall be used for agriculture or industries
  • The building thereon to be continuously maintained 
  • No demolition , alteration or extension without the prior consent from the Authority . 
(iii) Section 117 - Where any alienated land is subject to the category ' Industry' , some of the implied condition are
  • It shall be used only for industrial purposes , i.e. for factories , workshops foundries , warehouses , docks jetties , railways , etc. 
  • The industry shall commence within 3 years of alienation 
  • No demolition , alteration or extension without prior consent from the Authority .

Qualified Title ( Hakmilik Sementara /H.S. )

  • Qualified title means title issued in advance of survey . 
  • The purpose of a qualified title are : 
(i) to enable the land to be alienated in advance of survey .
(ii) to enable title to be issued in advance of survey to the individual portions of the land being subdivided or the combined area of the land being amalgamated .

  • Qualified title confers upon its holder similar rights in every respect as those conferred by a final title , except that : 
(i) the boundaries of the land shown on the document of title shall be provisional only ( except so far as nay of them may have been established by any earlier survey )
(ii) the land shall not be capable of being subdivided or partitioned , or included in any amalgamation , nor shall any building thereon be caable of being subdivisions .

Final Title

  • Final title is a final form of title under which the land is alienated after it has been surveyed by the Director of Survey and Mapping ( under the provision of Section 396 ) . 
  • Final title includes all forms of title ( i.e. Registry title , Land Office title and subsidieary title ) . except qualified title . 
  • Registry title means title evidenced by a Grant ( geran )(for freehold land ) , or State Lease ( Pajakan negeri ) (for leasehold land ) . Both are registered in the Land Registry at the State Land Office ( Pejabat Tanah dan Galian /PTG )
  • Land Office title means title evidenced by a Mukim Grant or Mukim Lease , registered in the local Land Office ( Pejabat Tanah Daerah / PTD ) 
  • Subsidiary title means title issued to any of the individual parcels within a building which has been subdivided , including a strate title as defined in the Strate Titles Act 1985 .

Squatter Rights

  • Adverse possession of land ( without any rights in land )

Temporary Occupation Licence

  • Occupant is given permission to use land for certain activity e.g. mining . 
  • The licence does not confer ownership rights to land and the occupant must leave after completion of the permitted activity . 

Tenancy

  • A letting of land for a term not exceeding 3 years , subject to renewal . 
  • A tenancy is not a right capable of registration , hence not a title .

Leasehold Land

  • State land which has been alienated to an individual for a term of years ( not exceeding 99 years ) . 
  • Upon expiry of the period of the lease , the land should revert to the State , subject to renewal . 
  • The market value of a parcel of land held under a leasehold titte will normally be lower than that of freehold title , especially where a substantial period of the duration of the lease has expired .

Freehold Land

  • State land which has been alienated to an individual for an indefinite period . 
  • A freehold title will normally command a better market value as compared to land tenure for a fixed term of years .

Alienation of Land

'Alienation' - the disposal of State land in perpetuity ( for an indefinite period ) , or for a term of years in consideration of the payment of rent .

Section 40 of NLC provides that all State land belongs to the State .

Land Administration System

Under NLC , the Australian Torrens system of title registration is applied , meaning that all dealings in land must be registered under the registering authority , i.e. the Registrar of Titles or Land Administrator - in order to be effective .

All land titles are in duplicate : the master copy ( register document of title kept in Land Office ) and the personal Copy ( Issue Document of Title )

Conclusiveness of register documents of titles
-Effects of registration are 'indefeasible' - to defeat all prior unregistered claims . Therefore the registered owner of a title will be free from all outside claims to ownership that is not recorded in the Register Document of Title or the Issue Document of Title . (Exceptions to indefeasiblility are cases of fraud or misrepresentation , forgery , or unlawful acquisition of title )

Legislation

land is a State matter which is administered at the State level by the Director of Lands and Mines , assited by the collector of Land Revenue and the Registrar of Titles .

Before 1965 , land administration in the various States was governed by different sets of land codes . The introduction of the National Land Code ( NLC ) in 1965 provides a uniform legislation governing the administration of land in Penisular malaysia . Due to historical and political developments , Penang and Malacca adopt NLC ( Penang and Malacca Titles ) Act 1963 ; Sabah and Sarawak adopt Sabah Land Ordinance and Sarawak Land Code respectively .

The function of NLC is to provide a uniform legal framework for dealing in all matters relating to land , land tenure , the registration of titles , and the collection of land revenue .

What is Land ?

'Land is real property ( or real estate ) . It is an immovable property that includes anything permanently attached to the land (e.g. buildings ) . The concept of real property is in contrast with personal property ( or 'chattel ) such as furniture , car etc .

Under the provision of Section 5 of the National Land Code (NLC) , 'land' includes :

(A) the surface of the earth and all substances forming that surface
(B) the earth below the surface and all substances therein
(C) all vegetation and other natural products , whetehr or not requiring the periodical application of labour to their production , and whether on or below the surface .
(D) All things attached to the earth or permanently fastened to any thing attached to the earth , whether on or below the surface , and
(E) land covered by water

Do you know your rights as consumer ?

Perhaps you might notice very often that the receipt or invoice which you received from a merchant would carry an exclusion clause or statement such as 'Goods sold are not returnable' or 'No refund once sold '.

However , if the goods that you ( as a consumer ) purchased were defective , the exclusion clause would be void and , under the provision of Section 46 (1) of the CPA , you have the right to insist for a refund and not to accept a repair on the same goods or a replacement with other similar goods . If the mechant refused to give you a refund , you could lodge a claim with the Tribunal for Consumer Claims ( established under CPA ) in the prescribed form together with the prescribed fee . Any claim lodged with the Tribunal may include loss or damage of a consequential nature . The amount of claim shall not exceed RM 25,000 ( with effective from 1 sept 2003 ) .

International Sales Terms

  • F.O.B contract
'Free on board (F.O.B.) contract - the seller pays for transportation of the goods to the port of shipment , plus loading costs . The buyer pays freight , insurance . unloading costs and transportation from the port of destination to his factory . The passing of risks occurs when the goods pass the ship's rail at the port of shipment . Internationally the term specifies the port of origin , e.g. "FOB New York " . if the buyer fails to nominate a ship within the specified delivery time , he is in breach of the contract which will make him liable for damages caused by his non-performance ( failure to accept the goods ).
  • C.l.F contract
'Cost , insurance , freight' (C.l.F.) contract - contract of sale of goods includes the cost of the goods together with insurance during transit and the freight for delivery to the port of destination . When a price is quoted CIF , it means that the selling price includes the cost of the goods , the freight or transport costs and also the cost of marine insurance  .

Bailment

'Bailment' means an owner's temporary transfer of possession of goods to another person . This includes hiring , loan , and delivery of goods for repair .

performance of the Contract

  • Delivery of the goods 
- 'Delivery' Means  voluntary transfer of possession from one person to another ( section 2 )
-Duty of seller to deliver the goods
-Duty of buyer to accept and pay for the goods .

  • Place of delivery 
-Unless otherwise agreed , goods sold are to be delivered at the place at which they are at the time of the sale .

  • Time of delivery
-Duty of seller to deliver the goods within a resonable time .
-The buyer is liable for any loss occasioned by his neglect or refusal to take delivery of the goods within a reasonable time after the seller's request . Including reasonable charge for the care and custody of the goods . 

Sale under a voidable title

Where the seller of goods has obtain possession thereof under a contract voidable under Section 19 of the Contract Act 1950 , but the contract has not been rescinded at the time of the sale , the buyer acquires a good title to the goods provided he buy them in good faith and without notice of the seller's defect of title .


Example :
When X obtain good from Y by Coercion and sells them to Z who buy them innocently . At the time Z buys the goods ,Y has not rescinded the contract made with X . Here , Z obtains good title to the goods . 

Privity of Contract

The general rule is that the terms of a contract are only binding on the parties to such contract . Similarly , the terms in a contract of sale are only binding on the seller and the buyer . Therefore if a person becomes ill after drinking a bottle of beer which has been fouled by a decomposed snail in the bottle , he can sue the beer seller ( and not the beer manufacture ) for a breach of contract . However , he may sue the beer manufacturer for neglignce under tort .